Bill Text: VA HB1801 | 2019 | Regular Session | Prefiled
Bill Title: Conditional rezoning proffers; extensive changes to zoning provisions.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2019-02-05 - Left in Counties, Cities and Towns [HB1801 Detail]
Download: Virginia-2019-HB1801-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §15.2-2303.4 of the Code of Virginia is amended and reenacted as follows:
§15.2-2303.4. Provisions applicable to certain conditional rezoning proffers.
A. For purposes of this section, unless the context requires a different meaning:
"New residential development" means any construction or building expansion on residentially zoned property, including a residential component of a mixed-use development, that results in either one or more additional residential dwelling units or, otherwise, fewer residential dwelling units, beyond what may be permitted by right under the then-existing zoning of the property, when such new residential development requires a rezoning or proffer condition amendment.
"New residential use" means any use of residentially zoned property that requires a rezoning or that requires a proffer condition amendment to allow for new residential development.
"Offsite proffer" means a proffer addressing an impact outside the boundaries of the property to be developed and shall include all cash proffers.
"Onsite proffer" means a proffer addressing an impact within the boundaries of the property to be developed and shall not include any cash proffers.
"Proffer condition amendment" means an amendment to an existing proffer statement applicable to a property or properties.
"Public facilities" means public transportation facilities, public safety facilities, public school facilities, or public parks.
"Public facility improvement" means an offsite public transportation facility improvement, a public safety facility improvement, a public school facility improvement, or an improvement to or construction of a public park. No public facility improvement shall include any operating expense of an existing public facility, such as ordinary maintenance or repair, or any capital improvement to an existing public facility, such as a renovation or technology upgrade, that does not expand the capacity of such facility. For purposes of this section, the term "public park" shall include playgrounds and other recreational facilities.
"Public safety facility improvement" means construction of new law-enforcement, fire, emergency medical, and rescue facilities, animal control-related facilities, or expansion of existing public safety facilities, to include all buildings, structures, capital equipment, parking, and other costs directly related thereto.
"Public school facility improvement" means construction of new primary and secondary public schools or expansion of existing primary and secondary public schools, to include all buildings, structures, buses, furniture, capital equipment, parking, and other costs directly related thereto.
"Public transportation facility improvement" means (i) construction of new roads; (ii) improvement or expansion of existing roads and related appurtenances as required by applicable standards of the Virginia Department of Transportation, or the applicable standards of a locality; and (iii) construction, improvement, or expansion of buildings, structures, parking, and other facilities directly related to transit.
"Residentially zoned property" means property zoned or proposed to be zoned for either single-family or multifamily housing.
"Small area comprehensive plan" means that portion of a comprehensive plan adopted pursuant to §15.2-2223 that is specifically applicable to a delineated area within a locality rather than the locality as a whole.
B. Notwithstanding any other provision of law, general or
special, no locality shall (i) request or accept require any unreasonable
proffer, as described in subsection C, in connection with a rezoning or a
proffer condition amendment as a condition of approval of a new residential
development or new residential use or (ii) deny any rezoning application or
proffer condition amendment for a new residential development or new
residential use where such denial is based in whole or in part
on an applicant's failure or refusal to submit an unreasonable proffer or
proffer condition amendment.
C. Notwithstanding any other provision of law, general or
special, (i) as used in this chapter, a proffer, or proffer condition
amendment, whether onsite or offsite, offered voluntarily pursuant to §
15.2-2297, 15.2-2298, 15.2-2303, or 15.2-2303.1, shall be deemed unreasonable
unless it addresses an impact that is specifically attributable to a proposed
new residential development or other new residential use applied for and (ii)
an offsite proffer shall be deemed unreasonable pursuant to
subdivision clause
(i) unless it addresses an impact to an offsite public facility, such that (a)
the new residential development or new residential use creates a need, or an
identifiable portion of a need, for one or more public facility improvements in excess of existing public facility capacity at
the time of the rezoning or proffer condition amendment and
(b) each such new residential development or new residential use applied for
receives a direct and material benefit from a proffer made with respect to any
such public facility improvements. For the
purposes of this section, a locality may base its assessment of public facility
capacity on the projected impacts specifically attributable to the new
residential development or new residential use.
D. In addition to and notwithstanding the provisions of subsection C:
1. An applicant or owner may submit:
a. Any offsite proffer for other than public transportation facilities, public safety facilities, public school facilities, or public parks, provided that such proffer would not otherwise be deemed unreasonable under subsection C;
b. Any offsite proffer for public transportation facilities, public safety facilities, public school facilities, or public parks, provided that such proffer addresses an impact that is specifically attributable to the proposed new residential development or other new residential use applied for; or
c. Any offsite proffer that the applicant or owner deems reasonable and appropriate, as conclusively evidenced by the signed proffers.
2. Failure to submit proffers as set forth in subdivision 1 shall not be the sole basis for the denial of any rezoning or proffer condition amendment application.
E. Notwithstanding any other provision of law, general or special:
1. Actions brought to contest the action of a locality in violation of this section shall be brought only by the aggrieved applicant or the owner of the property subject to a rezoning or proffer condition amendment pursuant to subsection F of §15.2-2285.
2. In any action in which a locality has denied a rezoning or
an amendment to an existing proffer and the aggrieved applicant proves by a
preponderance of the evidence that it refused or failed to submit an unreasonable
proffer or proffer condition amendment that it has
proven was suggested, requested, or
required by the locality in violation of this section,
the court shall presume, absent clear and convincing evidence to the contrary,
that such refusal or failure was the controlling basis for the denial.
3. In any successful action brought pursuant to this section contesting an action of a locality in violation of this section, the applicant may be entitled to an award of reasonable attorney fees and costs and to an order remanding the matter to the governing body with a direction to approve the rezoning or proffer condition amendment without the inclusion of any unreasonable proffer. If the locality fails or refuses to approve the rezoning or proffer condition amendment within a reasonable time not to exceed 90 days from the date of the court's order to do so, the court shall enjoin the locality from interfering with the use of the property as applied for without the unreasonable proffer. Upon remand to the local governing body pursuant to this subsection, the requirements of §15.2-2204 shall not apply.
E. F. The
provisions of this section shall not apply to communication
regarding or consideration of any new residential
development or new residential use occurring proposed or approved within
any of the following areas: (i) an approved small area comprehensive plan in
which the delineated area is designated as a revitalization area, encompasses
mass transit as defined in §33.2-100, includes mixed use development, and
allows a density of at least 3.0 floor area ratio in a portion thereof; (ii) an
approved small area comprehensive plan that encompasses an existing or planned
Metrorail station, or is adjacent to a Metrorail station located in a
neighboring locality, and allows additional density within the vicinity of such
existing or planned station; or (iii) an approved service district created
pursuant to §15.2-2400 that encompasses an existing or planned Metrorail
station.
F. G. This
section shall be construed as supplementary to any existing provisions limiting
or curtailing proffers or proffer condition amendments for new residential
development or new residential use that are consistent with its terms and shall
be construed to supersede any existing statutory provision with respect to
proffers or proffer condition amendments for new residential development or new
residential use that are inconsistent with its terms.
H. Notwithstanding any provision in this section to the contrary, nothing contained herein shall be deemed or interpreted to prohibit communications between an applicant or owner and the locality regarding the potential impacts of a new residential development or new residential use on the locality's public facilities either onsite or offsite that are specifically attributable to such development. Furthermore, notwithstanding any provision in this section to the contrary, nothing contained herein shall be deemed or interpreted to prohibit presentation, analysis, or discussion of the potential impacts of new residential development or other new residential use on the locality's public facilities either onsite or offsite that are specifically attributable to such development.
2. That this act shall be effective as to any application for a rezoning or proffer condition amendment filed on or after July 1, 2019, or to any then pending application for which the applicant elects to proceed hereunder, by amendment of that pending application.
3. That an applicant with a pending application for a rezoning or proffer condition amendment that was filed prior to July 1, 2016, may elect to proceed under the law as it existed prior to that date, and an applicant with a pending application for a rezoning or proffer condition amendment that was filed on or after July 1, 2016, but prior to July 1, 2019, may elect to proceed under the law as it existed during that period.